who is authorized to disqualify councilors for the 1972 act

Question

I have been asking the clerk to explain who authorizes authority and where the exemption comes from in the 1972 act for councilor's disqualifications if no meetings are held ( by dispensation) for the 6 month period, I have also asked the district council  ( wakefield ), the district council say they don,t interfere with parish councils  and don,t exercise to ask for Information, well who does have the right to disqualify and to check for confirmation of legalities in these type of circumstances, it,s been said that the clerk has not got the authority to disqualify so who actually does disqualify, also is there a standards board for clerks.

Answer 1

The disqualification for non attendance at meetings for a period of six months is contained within the Local Government Act 1972.  It is an automatic process which neither the clerk nor anyone else has the power to either invoke or reject.  A simple report to the elections office of your principal authority identifies the vacancy and starts the formal statutory process to fill that vacancy.

Comments

So if a dispensation is given at a council meeting (due to covid all council meetings canceled until further notice 0 does the process still work automatically or does a dispensation cancel the automatic disqualification.

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If a leave of absence is granted it has to be done by full council (at a properly constituted meeting) and must approve the absence and reason for it.  The six month clock is then reset.  So (a) there needs to have been a meeting to approve the absence and (b) there needs to be another meeting to extend any approval of an absence although I believe it may not be possible to continue to extend absences.  I've not had experience of multiple continuations of an absence so can't quote if or when this can take place.
Covid didn't automatically cancel all meetings and temporary legislation (now expired) did permit meetings to take place remotely during periods of lockdown up until May 2021.  Thereafter we had no choice but to meet physically and some councils did so only infrequently and occasionally outdoors for safety!

Answer 2

The exemption comes from a resolution of all of the Councillors, usually where a period of extended illness prevents attendance but it must come before the 6 month deadline is reached.

Comments

The most important bit of the OPs question is the last bit viz also "is there a standards board for clerks".  I am currently engaged in battle royale about the role of the clerk and in particular the alleged control over the agenda.  I am in the position whereby the clerk refuses to ask questions of NALC and NALC itself  refuses to answer any direct correspondence. My local affiliated association and the SLCC say they will only answer correspondence from the Council as a whole  if routed via the clerk .  The clerk has refused a motion to review standing orders  citing they are only due for an annual review.  So my latest question is does the Clerk have the right to put a motion on the agenda?  I have no objection to best practice being shared but if it is the form of a motion can the clerk include as of right ?

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On the question of clerks standards it would depend on their professional qualifications and who these were awarded by. As the Clerk is a direct employee of the council then their contracts of employments and agreed job descriptions and working practices held therein must be the guiding basis for expectations of duties and performance by the clerk.
On the matter of the absence and disqualification of councillors for non attendance, the solution is completely in the hands of the council to ensure a record of every meeting to which councillors are summoned states who was in attendance, from whom apologies have been received and with the reason given by the absent councillor which must then be minuted as accepted or rejected by the council at the meeting. This way there is an accurate un-ambiguous record for examination if the question of disqualification arises.

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I'm not clear why you think that the most important part of the question is whether there is a standards board for clerks but as you ve asked the question about changing or reviewing your standing orders, what is it you want changed or reviewed?  Most, if not all, standing orders do require an annual review (usually but not always done at the annual parish council meeting in May)  but you must remember that not all clauses can be changed.  If you're using the NALC standard, those typed in bold are not able to be changed by the parish council as they are based on statutory provision and the parish has no power to change these.   If there's something you don't like about the standing orders that can be changed, you need the council to agree any change by a majority vote.

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I would have thought it would be a change to compel the clerk to put all requests for Information from Cllrs to NALC.  But as I have said before, NALC don't live in the real world. Accordingly, they don't provide mulitiple or generic accounts to their subscribers because they refuse to believe that Cllrs might have concerns about the competence and possible adverse repercussions of incompetence of their  Clerks.

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Not an appropriate standing order in my opinion.  NALC operate through local county offices and few councils (very large ones usually) have direct access and of course you do have to be a member!  Surprising how many local councils aren't members.
Concerns about the competence or otherwise of any employee is via proper HR procedures.  ACAS can give advice about how to review performance of any employee and what to do if that employee's performance is substandard.

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Being a member of NALC might not be seen as good value for money. The fact that the local county ALC won't respond to PRESTONFAN raises questions about their practices. If the Council pay for membership, all members of the Council should have access, and if there is an issue with a councillor getting access, NALC should be seeking to resolve it instead of sitting in their high horses and ignoring him.

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A council is run by its members.  A clerk is employed to ensure that it carries out its functions lawfully .  The clerk cannot set policy and must take their instructions from the Council .  The problem comes when an  elite group of Councillors wish to maintain control they use the  clerk to do this.  Effectively some Councillors are scared of opposing dominating clerks as they believe they have more influence than they do. This is of particular concern when it comes to setting agendas and here para 9 of SOs is relevant .  These relate to the submission of motions by Cllrs ie something out with of the clerks direct influence.  Until about 5 years ago the NALC model SOs read that the clerk had the role of reviewing motions submitted and checking for improper wording and  the lawfulness of the motion.   If any errors were found the clerk could then correct the wording and in this respect the clerks  decision was final ie they could amend any badly worded motion.   The original SOs read subject to the paras detailing the issues of bad wording meaning that  the clerks decision was final only in such cases.  About 5 years ago the words subject to were withdrawn from the model SOs and the para now  reads that the ability to reject any motion  exists.  This is how it is currently  being widely interpreted by many clerks.    Recently our  clerk wanted to introduce changes to the number of Cllrs who could sit on the various committees.  When the clerk consulted the various chairman they all said to a man “we dont want to change our existing system leave it alone”.  However , being “ in control” of the Agenda the clerk said “don’t care I am putting it  on the agenda lets have the debate”.  At the next meeting which was right at the start of the latest Covid wave, the meeting barely achieved a quorum and all of the chairman failed to turn up and a Cllr chairman had to be appointed .  The item was then discussed by a small group of Cllrs who had no real grasp of what was being proposed or why and it was passed.   The next day when details were publicised it meant that there were no vacancies on the committees and 5 new Councillors who were co-opted at the same meeting  were therefore unable to join any committees.   There was uproar. The new Councillors therefore decided to try and overturn the motion using para 7  but it was then we found out that the number required was not set at the usual one third of total  members but at nearer three quarters and the numbers could not be achieved .  We therefore submitted a further  motion to review our  standing orders at the next Finance meeting where their TOR stipulated SOs had “to be reviewed regularly”.  The clerk has rejected that motion stating that “no they will be reviewed annually that’s it end of conversation”.   On top of this the clerk is refusing to give Councillor’s access to LTNs and is now refusing to answer correspondence on the subject. About this I have twice written to NALC for comment and they do not reply .  Our affiliated association advise that they do not deal with individual Councillors direct and as far as they are concerned the clerk has sole discretion regarding member Councils policy matters.  Similarly the SLCC state they will only deal with the Council as a whole.
Going back to the agenda issue one of Committee chairman has produced “evidence “ that due to the Clerks title of Proper Officer then they have total  legal control of the Agenda.  I am seeking to challenge this issue of agenda control via NALC legal consultation service and have presented my case to the staffing committee about it and all the other relevant issues.  No reply yet.
I had a previous dispute with the various Chairman about the use of S137 which  they wont answer.  I therefore wrote to the clerk seeking a legal opinion through NALC  .  The clerk did not reply
My considered opinion is that when push comes to shove NALC always has the clerks back and that because many Councils are scared of losing their  clerk say nothing and allow them to get away with murder.   I choose to argue the agenda  point as a matter of principle bearing in mind I believe I understand what the role should be .  I do feel however I am fighting with one arm tied behind my back

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Excellent summation. I have long stated openly on these pages and elsewhere that there has been a determined and orchestrated movement by NALC( via their, not your local offices) to shift the power of PC's from the legally elected representatives to their controlled, influenced, trained and indoctrinated new age clerks.
 This is a power trip on the part of NALC under the guise of information supply. We all know what information is-power.
You allow this at your peril- You CAN do your communities greater service WITHOUT the likes of NALC- You just have to put some hard work in rather than expecting everything laid on a plate for you and others doing your thinking for you! Stop being box tickers and serve the people who elected you!

As a PC you are gifted unprecedented power in the local government system Don't let your service be shackled by those with an agenda! Use that power for the good of your communities otherwise, others will claim it-BE WARNED!

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Is it possible that the "determined and orchestrated movement by NALC to shift the power of PC's from the legally elected representatives to their controlled, influenced, trained and indoctrinated new age clerks" is a valid response to the actions of self-interested, untrained, egotistical councillors who haven't actually faced a public election for years, if ever, due to the general apathy of parishioners and might need a firm guiding hand to keep them somewhere vaguely close to the path of legitimate local government?

Just a thought.

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Don't think so, I perhaps think it is NALC making life easy for themselves and keeping more from the subs they collect. One account per council with one set of user credentials means less time needed by them to  deal account maintenance and less server capacity utilisation. NALC see parish and town councils through their own rose tinted specs and think that Clerks and Councilors can do no wrong, and run a mile if asked to comment on evidence of malpractice or breaches of legislation. .

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Don't get me wrong and here I agree with Dave in that Councillors are not entirely blameless in this whole mess and it is ultimately only that group that can bring a solution. I merely highlight that while clerks have a huge part to play in the team that is a Parish Council sometimes they overstep the mark and act outside of their remit.  When you try and address that it often makes matters worse

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Having been a clerk in the past and am now a councillor, I find the "lets bash the clerk" comments disappointing as I've never had any issues with the very many clerks I've had contact with or a working relationship with, but perhaps I'm lucky.
I do however think there's a clear misunderstanding about what NALC actually is.  It's essentially a lobby group which aims to represent and support local councils.  The support is provided through their county offices and very few councils (and their clerks) have any direct input from the national office other than the occasional legal topic note which is distributed through the county officer.   The County officer should provide you with the login details to access the advice section of the NALC website but I've got to be honest, our local one doesn't provide the clerk let alone anyone else with that information (which is why my council aren't members).  Certainly in my area councillors (and clerks) have direct access to the county officer(s) but the service is questionable.  There is no supervisory role that NALC or the county office plays in the day to day business of a parish or town council although their role is to provide clarification on processes and procedures if asked.
The clerk is an employee but one which is (hopefully) trained so able to provide the advisory role necessary to ensure that the parish council operates within the law.  Of course, the law is out of date and an ass (and nearly older than me!) but it's not within the remit of the clerk or councillors to change the law.  If only they could!
Councils work by majority decision and sometimes the decision isn't the one you might want or even the best decision it might be but that's called democracy.  I get it that some councils rarely challenge the status quo but the way forward is to get people to stand at the next election who have a vision for the future for your town or parish.

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The problem with PCs is that they are stand alone entities with little external control and or monitoring .  This can often lead to small groups of Councillors floating to the top and dominate proceedings.  They become the Chairmen of the various Committees and effectively control what goes on  to the Agendas and whats debated.  What I am saying is that Clerks often align with this group (who often also control the staffing committee) and effectively shield this group from any awkward motions by exercising their right to refuse motions as per para 9 of the SOs.  It turns out that the criteria  for changing SOs is the same for revisiting motions.  This recent change to para 9 is a scandal.  I have requested that NALC provide a legal opinion but the clerk refuses to submit it as she controls as dialogue with NALC .  I envy you Delboy in your utopian world but in some PCs the atmosphere is toxic and the clerk often plays their part in directing affairs.  Ooops another resignation this morning

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But no meetings have been held for six months, the clerk claims her brother in law is allowed to stay as a councilor as he as attended a webinar, the 1972 act does not make any exemption within itself for any type of transmission unless authorized (URTHORISED REPRESENTATION) so if no meetings did the individual get authorization to attend any type of  seminar, were does the clerk find the authorization

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It sounds to me like the webinar was not a meeting of your parish Council so attendance at it does not count. If so your Clerk has provided incorrent information.  Refer this to the monotoring officer of the Principal Authority.

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I,m sorry for a long delay but i,ve been in hospital, I understand what your saying but if a dispensation was given in the March meeting of the full council ( due to covid thevillage hall will be shut and all council meetings will cease UNTILL further notice) that should have stopped the six month disqualification period starting in march, that is were the clerk as taken the 1972 act from(march) this desission made by full council meeting was printed and posted in council notice boards,the clerk seized an opportunity to have a group dismissed because that group outvoted her family and friends who had the vote@ that time,she acted wrongly and kept her brother -in-law on the council saying he represented the council at a YALC webinar, which also states the a councilor must be autherised by council to attend, no meeting were did the autherisation come from,neither is there an excemption to allow for such things ,that is my oppinion and she will not answer questions form me about it, just proves guilt all the way oh and her brother-in-law stated at the annual parish meeting that the district council(wakefield) gave him an exemption and she did not flinch,

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If the dispensation was actually given in the March 2020 meeting then the clerk has acted outside her authority in deeming all council members to be suspended.  The crucial thing here is what is recorded on the March 2020 minutes, how it is worded, and if the wording on the minutes is an accurate reflection of the proceedings.  Can you quote it verbatim here? Your Clerk should have advised at the time that S85 of the Loc Govt Act would apply after Sep 2020 unless the Council resolved to approve an exemption of non attendance of all it's members due to the uncertainty of Corona virus 2020 regulations.   By not doing so IMHO she displayed incompetence/negligence. She appears to have made no effort to facilitate Zoom/MS teams virtual meetings before Sep 2020 to avoid S85 kicking in.  The Clerk cannot counteract a resolution by Council, but the crucial thing is what the wording in the minutes says.

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this is exactely what was posted in the council notice boards, During COVID 19 the village hall is closed to the public and the parish council is undertaking reduced services until further notice.This includes Parish Council meetings which are cancelled un till further notice

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That shows the council in theory collectively decided to cancel meetings, but I did say that the crucial point was what the wording recorded on the minutes that resolved the cancellation actually said.  Was the wording below familiar?
Further to the Parish Council meeting 16th March 2020 due to issues relating to recommendations made today (16th March 2020) to avoid public gatherings due to the Coronavirus. The Clerk informed the Parish Council this was not an itemised agenda item but the Parish Councillors present felt due to the new information released today to agree this be discussed now and not to call a further Parish Council meeting to keep people safe. It was agreed by all Parish Councillors present to close the Village Hall from the 17th March 2020. The Clerk said as the building would be closed, she would be happy to work from the Village Hall and from home until Government restrictions were lifted. It was also agreed to cease Parish Council meetings until further notice.
It was agreed for the Clerk to carry on with her duties and if she requires any assistance in making decisions to contact the Chairman and Cllr A Miles as they all have been given delegated powers by the Parish Council to make emergency decisions on its behalf.

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Was a meeting of you council held VIA ZOOM on 2ND FEBRUARY 2021?  If so, assuming I have identified your council correctly, on what basis were A Garbutt B Mears L Pallett P Garbutt & P Kitching attending?

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this was probebly the first meeting after the covid period etc, L Pallet had a dispensation given in the Feb meeting of 2020 ? I thinkit was, B Mears is the clerks brother-in-law whom she stated attended a Yalc webinar (unortherized and no excemption) the two garbutts and P Kitchen were district councilors coopted by the district council,but how do you know which parish council it is?

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A little bit of investigation led me there. You mentioned that Wakefield DC was the principal authority, and I took it from there. IMHO your clerk has been seriously negligent and should have set up Zoom meetings in 2020. She was present at the March meeting when the minutes stated - and she knew the council cancelled meetings until further notice. Part of her role is to advise and guide councillors an by not doing that she created a situation where the council was non functional. All of the ex councillors should have complained to the external auditor and pressed them to produce a public interest report. If you had all agreed that an exemption to the 6 month rule should apply and it was minuted this would not have happened. She did not provide that guidance and it makes you wonder if a similar failure to anticipate issues that could render the council dysfunctional could arise on her watch.

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It is unbelievable that a previous council had an internal investigation about her,deemed her to be incompetent and then voted to allow her to continue, 3 of those councilors i spoke to said in different ways that they felt sorry for her,I just can,t believe what has happened,our community is being cheated and lied to , they say one thing away from council then when the push comes to the shove they back down,she has been reported by parishioners about being involved in moving box,s of council papers with other,s at a time when normally the village hall is shut, that was just 2 days after her family and friends were voted of the council, still they said can,t we forget it. Unbelievable,when her brother-in-law was asked were did the excemption come from in 2020 against the 1972 act his answere was wakefield,still they stand still.

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If the Wakefield MC monitoring officer ruled that one or more of your councillors were exempt from suspension from office and will not explain why, you could raise a complaint about him/her with the local govt ombudsman on the basis of maladministration.

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thank you for that Information everyone, can you tell me what powers has the Monitoring officer actual got,ie could he have the power to disqualify or prosecute etc.

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In reality no to the above. They can issue a censure notice which is a glorified public telling off, but cannot fine or remove a councillor from office for breaches of code of conduct. Unless the councillors electorate get to hear about it little impact might arise.

Answer 3

Councillors aren't disqualified for non-attendance, they just cease to be a councillor in line with s85 of LGA 1972. It isn't in the clerk's power to enact or override this, it simply is. The clerk is expected to notify the principal authority and the other councillors that a vacancy has occurred.
Full council has the power to grant an extension to the six month period of absence before the end of the six months. A good clerk will warn councillors that the six months are approaching so that they have a chance to pass such a resolution if they wish.

Comments

I also believe Councils should be much more critical of reasons given for non attendance.  I have yet to see one "apologies received" challenged . On a recent training course it was explained that a Councillors summons had the same legal standing as a court summons and they were so easily ignored ! Dont know how true that is

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I would also like to know how true this is. I don't know if all County Councils do this but ours publishes (if you can find it) a lost of how many meetings a County Councillor has attended. The list also shows how many they should have attended. There's some remarkable figures on it! I Would like to see Town/Community Councils do the same.

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My Borough Council publish attendance figures but to be honest many Councillors attend many meetings but contribute nothing
There’s some Councillors at Parish level that almost never speak at meetings
I’ve said to many such Parish Councillors when the next election comes what are you putting on your election flyer and all I’ve got it a blank look